CLAIM NO. E303242
Before the Arkansas Workers’ Compensation Commission
OPINION FILED FEBRUARY 6, 1998
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by the HONORABLE PHILIP E. KAPLAN and the HONORABLE SILAS H. BREWER, Attorneys at Law, Little Rock, Arkansas.
Respondent represented by the HONORABLE PHILLIP P. CARROLL, Attorney at Law, Little Rock, Arkansas.
Decision of Administrative Law Judge: Affirmed.
[1] OPINION AND ORDER[2] The claimant appeals and the respondent cross-appeals an opinion and order filed by the administrative law judge on July 22, 1996. In that opinion and order, the administrative law judge found that this claim is not barred by the statute of limitations. In addition, the administrative law judge found that the claimant has failed to prove by a preponderance of the evidence that he sustained hearing loss causally related to his employment with respondent. After conducting a de novo review of the entire record, we find that the decision of the administrative law judge must be affirmed. [3] The claimant is a 64-year-old man who began work for the respondent on December 1, 1981, and is still employed. Before beginning work with respondent, the claimant worked about one and a half years for Landers Flooring Mill where he was a knot saw operator. The claimant also worked for Beech Aircraft in final assembly, for Douglas Aircraft, at Burgess Valley Electric Cooperative as a groundsman and then as a lineman for 14 years with First Electric Cooperative. The claimant also worked for Reynolds Mining for two and a half years. The claimant served for two years in the Army where he was in the infantry division firing the big 30.06, the 36-caliber machine gun and 75 or 57 millimeter rifles. He wore no hearing protection. His pre-employment audiogram on October 30, 1981, reflected hearing loss at 3,000 Hz and above. The claimant worked in and around a number of noisy areas for respondent as an electrician. According to the claimant, he does hunt occasionally and uses a .12 gauge shotgun, a 30.06 and a .22 rifle. The claimant does occasionally use a Skil saw or drill and does operate a power mower with a muffler. [4] The respondent employer provided hearing tests on a yearly basis. The claimant indicated that in 1990 he was told by respondent that he had a substantial hearing loss. On June 1, 1990, the claimant signed an audiogram below the printed words “hearing impaired.” On that date, he was advised to see a doctor, or an ear, nose and throat specialist about his hearing. In 1990, the claimant saw Dr. Milner about the ringing in his ears. [5] The Courts have held on numerous occasions that the statute of limitations for workers’ compensation claims does not commence to run until the injury causes an incapacity to earn the wages which the employee was receiving at the time of the accident and until the incapacity continues long enough to entitle him to benefits under Ark. Code Ann. § 11-9-501(a) (1987). See, e.g.,Hall’s Cleaners v. Wortham, 311 Ark. 103, 842 S.W.2d 7 (1992);Cornish Welding Shop v. Galbraith, 278 Ark. 185, 644 S.W.2d 926
(1983); Donaldson v. Calvert-McBride Printing Co., 217 Ark. 625, 232 S.W.2d 651 (1950). The Supreme Court has characterized Arkansas as a “compensable injury” state because the statute of limitations does not necessarily begin running on the date of the accident. Instead, the limitations period does not begin running until the injury becomes compensable. Wortham, supra. [6] In the present claim, on March 2, 1993, the claimant filed a hearing loss claim for compensation and he contended at that time that he sustained work-related hearing loss. Nevertheless, there is no evidence suggesting that the claimant has suffered any loss of earnings or earning capacity as a result of this condition. Consequently, we find that the statute of limitations does not bar this claim. [7] The American Medical Associations’ Guide to the Evaluation ofPermanent Impairment are the recognized standards to be followed in workers’ compensation cases. Erwin v. Kenco, Full Commission Opinion, July 11, 1991 (D914190). The claimant and Dr. Daniel Orchik, an audiologist, recommended the “Oregon” formula, which takes into account higher frequency hearing loss; however, the “Oregon” formula does not address the increased effect of presbycusis which can affect the higher frequencies. We also note that the claimant has failed to demonstrate which organizations in the medical community, if any, that endorse the proposed “Oregon” formula. The AMA Guides contain the hearing impairment formula adopted in Arkansas and recognized by the American Academy of Otolaryngology. [8] Tom Rimmer, an industrial hygienist, testified as an expert witness for the claimant that he had conducted a comprehensive evaluation of the hearing conservation program at the employer. He concluded, as a result of that study, that the employer has had and still has some high noise levels, high enough to need a hearing conservation program and high enough to cause hearing loss. The employer has a hearing conservation program and they have made considerable efforts in that area, although deficiencies were noted. Dr. Rimmer referenced in his testimony a September 16, 1991, report from Christine Dixon Ernst, a management employee in the Pittsburgh office of the employer, where she was outlining some concerns at the Bauxite location and stated in this report that 50% of the respondent’s employees work in an area where the noise level is greater than or equal to 85 DBA. [9] The respondent does not dispute that the work environment has noise; however, it contends that it maintained a hearing conservation and testing program and provided hearing protection that was adequate to prevent noise induced hearing loss. [10] The claimant’s records indicate that the claimant in the present claim had a baseline audiogram on October 30, 1981. Periodic audiograms were performed up through May 17, 1993. Dr. Jeffrey Barber opined in a May 17, 1993 report that the claimant’s recent examination revealed bilateral moderate to severe, high frequency, sensorineural hearing loss. He also opined that the claimant’s pattern of hearing loss was typical of noise induced hearing loss; however, his hearing is borderline for needing hearing aids at this time. [11] Dr. Daniel Orchik, an audiologist with the Shay Clinic in Memphis, testified as an expert witness. Dr. Orchik opined that the claimant’s most recent audiogram has not shown an appreciable change in the left ear and only a slight change in the right ear. Therefore, it was the impression of Dr. Orchik that the “vast majority” of the claimant’s hearing loss preexisted his employment with respondent. Dr. Orchik assigned a 12.8% permanent impairment rating pursuant to the AMA Guides. However, he could not establish the hearing loss was causally related to the employment with respondent. Consequently, we find that in the present claim the claimant has failed to prove by a preponderance of the evidence that he sustained hearing loss causally related to his employment. [12] Therefore, after conducting a de novo review of the entire record, and for the reasons discussed herein, we find that the decision of the administrative law judge must be, and hereby is, affirmed. [13] IT IS SO ORDERED.
ELDON F. COFFMAN, Chairman
[14] Commissioner Humphrey concurs in part and dissents in part. [15] CONCURRING AND DISSENTING OPINION[16] While I concur with the finding in the principal opinion that this claim is not barred by the statute of limitations, I must respectfully dissent from the finding that claimant has failed to prove by a preponderance of the evidence that he sustained hearing loss causally related to his employment. [17] PAT WEST HUMPHREY, Commissioner [18] Commissioner Wilson concurs in part and dissents in part. [19] CONCURRING DISSENTING OPINION
[20] I agree with the principal opinion finding that this claimant failed to prove a compensable hearing loss. However, I write separately to explain that I disagree with the finding regarding the statute of limitations. Until this matter is resolved by the Courts, I simply cannot accept that the General Assembly created a class of claims for which the statute of limitations will never apply. Accordingly, for those reasons expressed in my dissent inCecil W. Smith v. ALCOA, Full Commission Opinion, February 6, 1998, Claim No. E303209, I dissent from the finding that this claim is not barred by the statute of limitations. [21] MIKE WILSON, Commissioner